May a new judge hear former guardian ad litem cases or cases involving lawyers renting the judge’s former office?

Plain-English summary

A new family judge had served as guardian ad litem in pending cases. Two lawyers also rented the judge’s former office from an intermediary tenant of a company wholly owned by the judge’s wife; the judge had no ownership or lease income.

The Commission required disqualification from cases in which the judge had served as guardian. It found no automatic disqualification for cases involving the lawyers renting the former office, but required disclosure of that relationship and applicable Trial Court Rule 17 procedure for six months.

In practice

The opinion bars former guardian matters and allows the described office-tenant matters with six months of relationship disclosure and applicable recusal procedure.

Common questions

Q: May the judge preside over former guardian ad litem cases?

A: No. The Commission required disqualification.

Q: May the judge hear matters involving the office tenants?

A: Yes, with relationship disclosure and applicable Trial Court Rule 17 procedure for the next six months.

Background and rules framework

Rule 2.11(A) addresses reasonably questioned impartiality and prior relationships; Rule 2.11(C) covers disclosure and waiver. The Commission also discussed Brown and Tennant on recusal.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 2.11(A), (C) and Comments 2 and 5, disqualification and disclosure.

Court rules:

• Trial Court Rule 17, disqualification procedure.

Cases:

• State ex rel. Brown v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994), case-specific recusal.
• Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 374 (1995), objective recusal and disclosure.

See also

• WV JIC Advisory Opinion 2017-14
• WV JIC Advisory Opinion 2018-11

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2017-04, redacted

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave., SE
Charlest on, West Virginia 25304
(304) 558-0169 • FAX (304) 558-0831

January 31, 2017

Re: JIC Advisory Opinion 2017-04

Dear Judge

Your request for an advisory opm1on was recently reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows: You are new to the bench having been elected to the office in May 2016. Prior to taking office you served as guardian ad litem in several family comt cases in the same jurisdiction. You want to know if you can now preside over the same cases in which you fmmerly served as guardian ad litem.

You also want to know if you are disqualified from hearing cases involving two attorneys who are now leasing your old law office space. Your former office is located in
a building owned by
, Inc. The company is owned entirely by
your wife. Your wife recently leased the building to a landlord/real estate investor who turn has rented your old office to the attorneys. You have no ownership interest in the real prope1ty or the corporation and would not derive any income from the lease agreement.

To answer your question, the Commission has reviewed Rule 2.11 of the Code of Judicial Conduct which provides as follows:

Rule 2.11 Disqualification

(A) A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances:

JIC Advisory Opinion 2017-04
January 31, 2017
Page 2 of 4

(1) The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding.

(2) The judge knows that the judge, the judge's spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is (a) a party to the proceeding or an officer, director, general partner, managing member, or trustee of a party, (b) acting as a lawyer in the proceeding; (c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or (d) likely to be a material witness in the proceeding.

(3) The judge knows that he or she, individually or as a fiduciary, or the judge's spouse, domestic partner, parent, or child, or any other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or is a party to the proceeding....

(C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(l), may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and comi personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without paiiicipation by the judge or comi personnel, that the judge should not be disqualified, the judge may participate in the proceeding.
The agreement shall be incorporated into the record of the proceeding.

Comment 2 to the Rule notes that " [a] judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed." C01mnent 5 states that "[a] judge should disclose on the record information that the judge believes the paities or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification."

When a question of disqualification arises an analysis must be made of when a cmrnnt or former relationship causes a reasonable questioning of a judge's impartiality.

JIC Advisory Opinion 2017-04
January 31, 2017
Page 3 of4

In State ex rel. Brown v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994), the Court considered whether the circuit court was correct in holding that a search warrant issued by a magistrate was void because the magistrate was married to the Chief of Police and one of his officers had obtained the wanant. The Comi held that in any criminal matter where the magistrate's spouse was involved the magistrate would be disqualified from hearing that matter. The Court declined to extend a per se rule to other members of the police force. The fact that the magistrate's spouse was the chief of police of a small agency did not automatically disqualify the magistrate who could be otherwise neutral and detached from issuing a warrant sought by another member of the police force.

In Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 374 (1995), the Court held that a judge should disqualify himself or herself from any proceeding in which his impmiiality might reasonably be questioned. The Court noted that the avoidance of the appearance of impropriety is as impmiant in developing public confidence in the judicial system as avoiding actual impropriety and that the judge should take appropriate action to withdraw from a case in which the judge deems himself or herself biased or prejudiced. Tennant cited the commentary to former Canon 3E(l) which states that a judge should timely disclose on the record information which he/she believes the parties or their lawyers might consider relevant to the question of disqualification. Litigants and counsel should be able to rely on judges complying with the Code of Judicial Conduct. There is no obligation imposed on counsel to investigate the facts known by the judge which could possibly disqualify the judge. The judge has a duty to disclose any facts even if the judge does not feel that they are grounds for disqualification sua sponte.

Tennant also addressed the rule that a judge has an equally strong duty to sit where there is no valid reason for recusal. In so doing, the Court set forth a balancing test between the two concepts. While giving consideration to the administration of justice and the avoidance of the appearance of unfairness, a judge must also consider whether cases may be unfairly prejudiced or delayed or discontent may be created through unfounded charges of prejudice or unfairness made against the judge. The Court noted that the standard for recusal is an objective one. Facts should be viewed as they appear to the well-informed, thoughtful and objective observer rather than the hypersensitive, cynical and suspicious person.

Based upon the foregoing, it is the decision of the Commission that you m·e disqualified from handling cases in which you previously served as a guardian ad litem. However, you are not disqualified from cases involving the attorneys renting your former office space. The Commission is of the opinion that you should fully disclose the nature of the relationship with the attorneys and follow the tenets of West Virginia Trial Court Rule 17 where applicable for the next six months.

JIC Advisory Opinion 2017-04
January 31, 2017
Page 4 of4

We hope this opinion fully addresses the issue which you raised. If there is any further question regarding this matter do not hesitate to contact the Commission.

Sincerely,

~~--- Ronald E. Wilson Chairperson Judicial Investigation Commission

REW: tat